Neil L. Shapiro: Officials must be held accountable

That award flowed from a successful legal challenge — commenced in 2009 — to sufficiency of the environmental impact report for the now-abandoned regional desalination project that was to be partnered by the Marina Coast Water District, Monterey County and Cal Am.

After extensive and hard-fought litigation, Villarreal found the EIR inadequate in a number of critical particulars. California law provides a party mounting a successful challenge to an EIR is entitled to recover attorney's fees from the agency responsible for that EIR, so Marina Coast now has to pay nearly $1.3 million.

If Marina Coast loses its pending appeal, it will have to pay the trust's attorney's fees on appeal as well.

But that is not all. Marina Coast reportedly paid San Francisco lawyer Mark Fogelman close to $500,000 this year for his work in defending the EIR, and is said to have dropped more than $2 million on legal fees in connection with the regional project and the EIR challenge.

Of course, it wasn't really Marina Coast that is paying. Rather, as usual, the public pays. The people who concluded the EIR was sufficient, who rejected requests that it be revised and who decided to fight tooth and nail to defend it, cost district residents millions of dollars. But what do they care? It's not their money.

This is not an isolated case. Two local lawyers were recently awarded more than $450,000 for their challenge to an airport district EIR in connection with a required runway improvement.

There are other statutes, such as the Public Records Act, that shift legal fees to a losing governmental defendant.

In 2005, Patricia Bernardi asked the county for copies of documents about the planned September Ranch subdivision. The county withheld some, contending they were not "public." Bernardi sued.

Judge Robert O'Farrell then awarded Bernardi $244,287 in attorney's fees from the county. An appellate court later directed the Superior Court to determine how much more Bernardi should receive for her attorney's fees on appeal.

The theory underlying such fee-shifting statutes is that members of the public should be encouraged to vindicate the public's interest in such things as environmental quality and transparency in government, and the public benefits by, and therefore should pay for, such vindication. The premise is questionable, and some statutes are abused, but that's the law and it's not likely to change.

In the Ag Land Trust and Bernardi cases, it was public officials or public employees who decided where to draw a line in the sand, but when the line turned out to be in the wrong place, it was the public who had to bear the economic consequences. Doesn't seem quite fair, does it?

I'm not suggesting such huge fee awards should be imposed on those we hire or elect, but perhaps the statutes should allow a court to ding a public official or employee at least a little bit if it concludes the decision-making was unreasonable.

Now our representatives have little incentive to drop the occasional "tough guy" mentality and negotiate with a claimant to avoid costly litigation. Perhaps if they had a little skin in the game, their decisions would cost us less.

Neil Shapiro is a Monterey lawyer who writes about legal issues and other topics.